Tuesday, December 30, 2008

My Israel activism days are long over, but every once in a while a situation arises that gets my blood boiling. When I first heard about Israel's retaliatory strikes on Hamas, I was ambivalent. Frankly, nothing permanent is going to come out of this, Hamas will still be around when the dust settles, and Israel will hopefully have earned itself some peace and quiet (which is an important virtue I admit). But any victory is likely to be pyrrhic, and anyone who thinks this "war" is going to fundamentally change the situation is dreaming.

Yet despite literally 12,000 rockets being shot into Israel over the last few years, we have self-professed experts pontificate that Israel's reaction is disproportionate, her strikes are a massacre, and that is Israel's ambitions are genocidal. Every time I read such nonsense I feel like grabbing the author and shaking him until he can explain what exactly is permitted to do under these circumstances. Hamas is the democratically elected government of the Palestinians in Gaza. It is also a terrorist organization according to the US, EU, and Israel. It has made no peaceful overtures. It not only officially states that its goal is to destroy Israel, but its leaders make such comments on a daily basis. There are no moderate members of Hamas (at least publicly). Hamas has unequivocally made it clear that its raison detre is to destroy Israel..

So what is Israel allowed to do when they are attacked by this entity? If Israel can't strike at Hamas policemen, if Israel cannot target Hamas leaders (even political leaders), and if Israel cannot target civilians, how can Israel defend itself? Unlike the IDF, Hamas "soldiers" wear no uniform or insignia designating them as combatants. They intentionally blend in with civilians. If Israel cannot attack its openly identified members (policemen and leaders), who can they attack? The terrorists aren't exactly wearing a placard stating their intent to carry out the next suicide bombing or launch the next quassam. WHO CAN ISRAEL ATTACK?

I'd like the next critic of Israel's policy to describe in detail what moves are permissible under international law, morality, or whatever. Enough with the meaningless criticism, let's hear some particulars.

Saturday, November 08, 2008

1) Insofar as the Federal Constitution is involved, I still believe that the Constitution cannot legitimately be interpreted either descriptively (based on precedent) or normatively (according to the most proper method of interpretation) to require states to allow same-sex marriage (SSM). I've blogged about this in the past (see here), and stand by much of what I've written.

2) This post is titled "Why I Do Not Oppose Gay Marriage" not "Why Everyone Should Not Oppose Gay Marriage." There are legitimate religious and moral arguments against SSM, which while they do not appeal to me, are perfectly acceptable means of legislating in the United States. I am no Rawlsian and do not limit political deliberation to public reasons. Moral and religious constructs are perfectly legitimate bases for laws in most cases, and I've seen no argument to exclude them in this case.

3) I am not making a case in favor of civil unions or domestic partnerships. There are literally hundreds of undisputed, tangible benefits that accrue to married couples that are denied to same-sex couples when they cannot enter civil unions or domestic partnerships. Frankly, given all these benefits, it's hard to really come up with an argument against civil unions, and I am starting with the baseline that civil unions should be allowed.

Onto the subject at hand. For much of my blogging career I have been opposed to gay marriage. Although I haven't written much about it (here being an exception), I've defended the anti-SSM position on blogs such as Dovbear. But after a number of years of thinking about it, I've come to the realization that there simply isn't any reason for me to oppose it.

What changed my mind? I'm not totally sure, but I believe it was a combination between gaining a greater understanding of the benefits of SSM and no longer placing as much weight on the costs (costs which are mostly illusory).

Let's look at the the arguments pro and con.

Arguments For SSM

The arguments in support of SSM are of two types, deontological and utilitarian. First the deontological:

1) SSM should be permitted a matter of equality. In the past I've opposed this argument since I believed that same-sex couples and opposite sex couples were not similarly situated. As a matter of constitutional law, I continue to believe I am correct. But as a matter of political morality, the essential definition of marriage is constantly evolving and the almost universal opposition to banning gay sodomy coupled with the growing support for civil unions and domestic partnerships leads me to believe that the concept of marriage is currently in flux. As a result, this argument appeals to me more than in the past.

The utilitarian argument is as such:

1) Marriage is clearly a benefit to the individuals involved. As stated above, I am not discussing tangible benefits such as visitation rights and marital property, which are undisputed benefits. I am talking more about the psychological benefits of having one's relationships accepted by society at large, which surely is important. If anyone doubts that society's willingness to stamp a relationship with a measure of approval is a benefit to a couple, imagine tomorrow that New York decided to outlaw Jewish marriages or interracial marriages, and only afford those unions the status of civil unions. Would Jewish or Black civil rights groups stand idly in the background because those couples in a civil union have the exact same rights as married couples? Would anyone reading this post not feel a degree of horror at New York's open and notorious act of discrimination?

Now, the analogy isn't perfect and as a matter of constitutional law there is a huge difference between same-sex couples and interracial or Jewish couples. But this isn't a question of law, but rather political morality, and the essential aspects of the analogy basically hold.

Arguments Against SSM

So now that I've laid out the arguments in support, have opponents of SSM mustered any strong arguments in opposition? I do not believe so and will explain why below. At the end of the day, the benefits of SSM far outweigh the costs. Let's look at these arguments:

1) Marriage has always been between men and women. There are two version of his argument, the Strong version and the Weak version. While I am sympathetic to the Weak argument and will return to it below, the Strong argument is fatally flawed.

The Strong version claims that marriage has always been between people of the opposite gender and therefore SSM is not marriage. As structured this arguments obviously falls prey to the Humean is/ought fallacy. The fact that marriage has always been one way does not entail that it shoul always be that way. Civil marriage is the US is currently in flux, and the aspect of marriage limiting the institution to opposite-sex couples is no longer as clear as in the past. Marriage is shifting and we should not deny the label "marriage" to same-sex couples merely because we have done so in the past.

2) Marriage is harmed by SSM. This argument is notoriously slippery. In what way is my marriage harmed if two gay guys down the block want to get married? Rarely is this argument explicated in way that would actually explain the harm.

The most explicable version of this argument was proferred by Amy Wax in a Federalist Society debate over SSM. In a nutshell, Wax argued that marriage is a bundle of criteria that taken together define the institution. One criterion is that marriage must be monogamous (obviously this hasn't always been true, but it is the accepted definition in the Western World today). Since, as Wax goes on to say, gay men tend to be more promiscuous than straight men and have more partners, if we permit SSM, we'll be allowing people who do not believe that marriage must be monogamous to negate the monogamy criterion. How does that work? Since marriage is defined in part by how people act, and 2% of men in this country are gay (and generally do not believe in monogamy), we'll be adding a large number of marriages between participants who do not support monogamy as a rule to the overall number of marriages. Those 2% will obviate the monogamy criterion because they will dilute the total number of monogamous marriages. But since they oppose monogamy as a rule, they will also be openly nonmonogamous openly and others may follow their lead and enter into marriages, which will not be monogamous. The more people who marry with the express intent to not be monogamous, the further the definition of marriage will be away from monogamy. The monogamy criterion will no longer be part of the definition of marriage, and that will lead others to forgo monogamy as well. Hence the change in marriage as we know it.

This argument fails on a number of grounds (I am basically restating Dale Carpenter and Andrew Koppelman's responses). First, most SSMs are between lesbians who are famously monogamous. If anything, they should outweigh the gay men who openly and notoriously enter into nonmonogamous marriages. Secondly, SSM will make up a very small percentage of marriages. It's hard to imagine those marriage will have a substantial effect on the rest of society. Definitional changes cannot be effected by such a tiny minority of marriages. As long as the overwhelming majority of marriages have a monogamy criterion, marriage will still be defined partly as a monogamous institution. Finally, even if a small percentage of marriage could have a real effect on the institution of marriage, there is a serious weakness in Wax's argument. How do we get from "gay men will marry without the intention of staying monogamous" to "others will follow their lead?" How will others know the rules of those gay men's marriages? I have no idea what type of marriage my neighbors practice, even though I realize that odds are some of their marriages are not entirely monogamous. Why would straight couples suddenly decide to have open marriages just because some gay men decided to do so? The logic just doesn't follow.

3) Permitting SSM in other countries has weakened marriage in those countries. This is an essentially empirical argument, most prominently offered by Stanley Kurtz. But Kurtz's statistics say nothing about whether the correlation between the negative effects of marriage and permitting SSM is actually causation. Essentially someone must make an argument to link the two. At the end of the day, this argument is parasitic on Wax's argument, because Wax provides a framework for understanding the data Kurtz and others provide. And Wax's arguments are clearly insufficient to justify not allowing SSM.

The above arguments are the most commonly offered intellectual justifications for not permitting SSM. But they fail to describe any costs to our society if we allowed SSM. And they surely do not provide a basis for denying same-sex couples the benefits of SSM. So I do not see any reason to oppose SSM anymore.

Given the above, why did I title my post "Why I Do Not Oppose Gay Marriage" rather than "Why I Support Gay Marriage?" Well, I'm still a conservative. While the criterion of marriage that only includes opposite-sex couples is in a state of flux right now, there has not been enough of a change on the ground for me to support SSM across the board. Not a single state has voluntarily decided to extend marriage to same-sex couples. 30 states right now have a constitutional ban against SSM. We are still ways away from SSM becoming part of our social traditions. Essentially I accept the weak version of the "marriage has always been this way" argument because I will afford our current practices a presumption of correctness (unless they are scathingly unjust) until the practices are modified organically.

But I would be completely open to NY, which is now completely under Democratic control, voting in SSM. I concur with Justice Brandies, who famously argued that the states should be laboratories of democracy. Let's let some states accept SSM, with DOMA ensuring that other states do not need to do so, and we can see whether SSM is capable of fitting within the norms of our society. We have little to lose and everything to gain. And if it happens in New York, you won't see me picketing outside of City Hall.

Friday, November 07, 2008

The idea that judges decide cases based on their personal policy preferences is not new, and is often used as a tool by both parties against judges who decide cases in ways they don't like. Conservatives often rail against "judicial activism," which is essentially an empty term, devoid of any real content, and usually means decisions that go against the speaker's preferred outcome. Liberals brand conservative justices as right-wing ideologues who have no interest in interpreting the Constitution, but rather want to impose conservative values on the country.

But in reality the two critiques are not so similar. Many conservative politicians espouse "strict constructionalism," a judicial ideology opposed even by hard-core textualists such as Antonin Scalia as unreasonable. The more sophisticated version understands the Constitution to have a fixed semantic meaning that be derived without looking to morality or politics. But the conservative critique of liberal activism at least starts with the premise that the Constitution has a meaning that can be derived without recourse to moral or political views. Judges who allow their personal moral code or their policy preferences are diverging from the meaning of the Constitution.

Liberals tend to focus on moral concepts such as equality and liberty and expect judges to allow those concepts to illuminate the legal norms embedded in the Constitution. The academic version of the liberal view of judging (e.g., Dworkin, Tribe, etc.) also holds up the Constitution as a moral document that is interpreted based on modern sensibilities. Conservative judges who interpret the text based on semantic meaning are really setting up a facade to cover their naked political decisions because interpretation necessarily requires moral/political analysis.

So frankly I don't understand the this passage written by two pretty liberal legal scholars:

[McCain] voted to confirm every Bush nominee, and has said he will select conservative judges and would not have selected Justices Ruth Bader Ginsburg, Stephen G. Breyer, David H. Souter, or John Paul Stevens (the latter two Republican-appointed), judges widely respected for placing the law ahead of politics.

If ingredient in constitutional interpretation is the integration of moral values with legal concepts, then in what sense do the above named justices put law ahead of politics? Part of law is politics (or morality or whatever you want to call it) by their own definition. So unless we define "law" as "good liberal outcomes" and "politics" as "bad conservative outcomes" this sentence just doesn't make any sense.

At the end of the day, the liberal critique is arbitrary. If the Constitution must be interpreted morally, then why can't conservatives allow their moral views to influence their decisions? At the end of the day, the liberal critique is reducible to disputes over the most correct moral values. The conservative critique at least would, in theory, countenance liberal outcomes if that's what the semantic meaning of the Constitution mandated. So to some degree the conservative position is a bit more principled.

Thursday, November 06, 2008

It looks like the Democrats are not going to get to 60 in the Senate. That's a much bigger deal than who ended up being President.

Same sex marriage in California is on the way out. Eugene Volokh has a post about its possible ramifications on the already-existing gay marriages in California. I plan to write a post about SSM in the coming days, but I'm happy to see another attempt to have the courts stick its nose where it doesn't belong shot down. Anyway, California's referendum/amendment system is a ridiculous means to pass legislation, which although probably not unconstitutional, is an only slightly less absurd way to decide important questions of policy.

Monday, November 03, 2008

I've stayed on the sidelines for most of this political campaign, but with one more day to go now is probably the time, right?

I have to be honest, but neither candidate really appeals to me. Not because I'm so conservative that I'm appalled by McCain's realization that we need a pragmatic immigration policy, or because he opposed to the federal marriage amendment. These are good things. And surely Barack Obama's political views leave a lot to be desired.

However, I must admit that McCain isn't exactly the most inspiring leader. And the campaign he's run is undoubtedly negative. Just last week Obama spent enough money to buy actual network TV time in what was effectively a half an hour commercial. On the same night, McCain appeared on Larry King Live. As one pundit put it, Obama spent almost the entire time talking about Barack Obama; McCain spent the time talking about ...... Barak Obama. While the candidate who is down in polls tends to attack his opponent (the old "tear him down to bring me up" approach), McCain's campaign has been overwhelmingly negative in the past few weeks. I have to say that I'm not a huge fan of constant negative campaigning.

On the other hand, despite Obama's tremendous political skills and ability to inspire, his unprecedented lack of experience is quite worrisome. For all effective purposes, he's been in the Senate for two years. It's rare for senators to be elected as President. But when was the last time a senator was chosen with so little experience? Has there ever been a senator elected president before even completing his term? While experience is not everything, it provides all-important data when making fundemental decisions. I have a hard imagining that a potential President could really respond effectively to difficult and urgent foreign policy problems without some serious leadership experience.

Despite the personal flaws elaborated on above, at the end of the day Presidents must be chosen based on policy, not personality. And on policy I tend to lean more towards McCain than Obama ( I know, shocking). McCain's foreign policy appeals to me primarily because of his views on Iraq. A hasty withdrawal would be a disaster in that area of the world. If Iraq collapses in civil war, the region could explode. While I believe that McCain's foreign policy overall could use a little advice from professional diplomats such as Dennis Ross, McCain's willingness to make the difficult, if unpopular, choices, gives him a leg up over Obama, who does not seem to believe that we can win in Iraq.

And then there are economics. McCain wants to cut taxes across the board, while Obama wants to raise taxes on the top 5%. But raising taxes during a recession is a terrible idea. Even the great liberal economist, John Maynard Keynes, proposed increasing spending to get economies out of recessions, not raising taxes. Raising taxes only hurts economies when times are tough.

Divided government is also an important consideration. Surely the excesses of the Bush administration can be traced to one part controlling the Legislative and Executive branches. When the branches do not properly check each other, they tend to run wild. A democratic President with a filibuster-proof Senate and a huge majority in the House would be able to implement whatever extreme policies they feel would solve our national problems. Even a Democrat should be wary of that possibility. Just look how the eight years turned out for us Republicans.

Politics aside, I believe both candidates could be good Presidents and would be fine seeing either one occupy the White House in January. But I hope the American people make the right choice tomorrow and give McCain a shot. And, hey, if it doesn't work, maybe Obama will actually be ready in 2012.

Sunday, November 02, 2008

It's been a while since we last posted on the blog, and we wish to update our venerable readers about Rafi's status. At the end of the day, Rafi is doing pretty well. He's actually reaching his developmental milestones, which at this point aren't really much. He sleeps through most of the night, which makes so much easier for both of us. While he's still eating exclusively from the feeding tube, our (especially Shifra's) increased experience has made the feedings more efficient and consequently less difficult for Rafi and both of us.

That's the good news. The bad news is Rafi has undergone a battery of tests over the last month, including an audiology test, a sleep study, and a meeting with a phalanx of doctors. These tests, of course, exclude his periodic appointments with his cardiologist and pediatrician. We have one more test tomorrow, and next week the doctors at NYU will decide whether Rafi needs surgery now, or can wait until he's older. As it stands, it looks like surgery can be delayed, but we're not holding our breath.

Rafi has also started early intervention. Luckily the therapists come to our apartment and save Shifra the exceptionally difficult task of schleping Rafi out to their offices on public transportation.

All things considered, Rafi is quite a tough kid. He rarely cries for no reason and smiles frequently. Despite seeing doctor after doctor, and having undergone two surgeries, he's a well-adjusted baby. Most of the credit goes to Shifra, but Rafi has to get some too (I come in a distant third and my contribution mainly involves playing superbaby and burping him after his innumerable feedings).

Rafi is not out of the woods yet, but as his condition is no longer life threatening (at least at this stage), I feel as if we can breath easier. Despite everything he's the world's cutest baby, and we can't imagine life without him.

Sunday, September 14, 2008

The bris went well today. We had a lot more people than expected, but luckily the caterer brought extra food and no one went home hungry. A lot of people went the extra mile to get there (a special thanks goes to my cousins in Silver Spring who drove up today just for the bris - that's eight hours of driving in one day with a one year old for those counting at home).

The baby is sleeping now and we hope will sleep through the night. His name is Raphael Yehuda. His second name comes from Shifra's grandfather, who passed away last year and we chose Raphael because we like the name and because we hope he recovers from his ailments. At present, I'm still calling him Spike, but Shifra likes Rafi, so I'll be forced to make the switch soon.

Anyway, I hope that now that he's home and a member of the Tribe, things can calm down and we can get into a normal schedule. We're still waiting on his jaw and whether they can even do the surgery when he's an infant. But otherwise we're getting into a routine and will finally be able to really enjoy our time with him.

Thursday, September 11, 2008

Sorry we haven't written in a while, but I'm sure you all can understand what having a baby at home does to one's spare time (pretty much anihilates it). The baby is B"H doing very well, but his feedings continue to be a hassle. If anyone has any experience with using a feeding tube on a baby, please give me some tips! In general, the baby still has some discomfort during the feedings, which makes each session unpleasant for both of us. I think the situation is improving, but if you have any information about making the feedings more enjoyable, please let me know.

The baby is still on blood thinners since his last echo revealed that he still has something unusual in a vein near his heart due to the heart surgery. His cardiologist said that she is not certain that the anomaly is a blood clot, but to be safe, he is being treated as though he has one. The baby will technically be on blood thinners until the end of the month when he will have another echo, but since there is no immediate danger, the blood thinners are being suspended for about a week so we can finally have the bris! The bris will G-d willing take place this Sunday afternoon at our synagogue (you can email us for details). We are incredibly thankful that this is actually happening, and we're looking forward to when we can refer to the baby by his name (although the nicknames we came up with are pretty cute too).

We are also still waiting to hear from our hospital about jaw surgery for the baby. The last we heard, the OMF team was not sure if surgery can be performed at this time for the baby, and that we'd probably have to wait some time for it to be done. We're planning on getting second opinion with NYU anyway, but that's still in the works.

In general, the baby is just adorable (in my non-biased opinion), and he loves lying on his playmat watching its little stuffed animals hovering overhead. It's such a blessing to finally have him home.

Tuesday, August 26, 2008

Today the baby had surgery to receive a stomach tube, which we'll use to feed him until he learns how to eat properly. Thankfully the surgery went very well, and the baby is currently sleeping off the anesthesia. I was glad to see that the actual tube is quite thin and small, and shouldn't be bothersome to the baby. He's on a breathing tube once again, so we can't hold him right now, but hopefully the tube will be removed later tonight or by tomorrow morning.The baby will also need another echo to determine if the blood clot is going away/gone by now, so we're waiting on that as well. He'll remain on blood thinners until we know for certain.We certainly wish that the baby can come home this week for Shabbos, and I guess we'll see how the week plays out.

Friday, August 22, 2008

Being able to hold the baby certainly makes this whole experience a lot easier to deal with, but we're not out of the woods yet. We had a small scare from the cardiac team this week, who found what may be a clot in a vein near the baby's heart from the surgery. They're treating him with blood thinners, monitoring his progress and hopefully he'll be fine. The baby will be on blood thinners for 1-2 weeks, and hopefully it'll be closer to a week.He's also been seen daily by a feeding specialist, Dolores. With each session, he's taking more and more milk by bottle, which is great, but Dolores says that due to his little chin, it's difficult for him to take sufficient milk on his own, and the feeding tube is still necessary.OMF surgeons (Oral Maxillofacial) confirmed this with their evaluation yesterday. They're convinced that the baby will need surgery to enlarge his jaw and have ordered a CT scan to obtain measurements. The surgery is not going to take place for another month, though, and the baby will B"H be able to come home for a bit in the meantime! Hopefully, the clot issue will be resolved soon, and we can bring him home for a few weeks (with the feeding tube).So, at least we have a bit of a timetable now, which is comforting, though I hate the thought of putting our baby through more surgery, even though I know it's for the best. It's been really tough, but we try to take the situation day by day.

Thank you all very much for the your supportive messages, emails, and voicemails. It's difficult to return calls, but we do appreciate them all very much.

Sunday, August 17, 2008

I think Baby is happier since they removed all the contraptions that covered his face. With only a feeding tube remaining, we can finally see what Baby really looks like. He's a real cutie.

Today we just spent the vast majority of the day holding him. He fell asleep, woke up, and ate in our arms. It's just nice to be able to hold our child after almost two weeks of tests and a major surgery. As one would expect, Baby really likes being held. He just looks at us, and we look at him. It's sad to leave him behind when we go home, and even sadder for me since I won't get a chance to see him until late tomorrow, but we're hopeful that he'll come home soon and then we'll hold him as much as we want.

Tuesday, August 12, 2008

It looks like the respirator is coming out tomorrow morning. The nurses have been decreasing his morphine dose and today he was very active and awake (he likes it when we hold his hand). He was even making eye contact with us (or so we think).

After they take out the respirator, we'll finally be able to hold him. I'm really, really excited to hold him. It's sad that it's been a week already and he's never been held, but I'm sure Shifra and I will make it up to him. :-) We'll keep you guys informed.

Update (August 13, 10 pm): They took the respirator out tonight. We almost got a chance to hold him before going home, but he was all swaddled up and sleeping and no one wants to wake up a sleeping baby. So it looks like tomorrow is the big day. The doctor told us that he might be ready to go home by Sunday or Monday. We can't wait.

Update (August 15, 5:30 pm): We were allowed to hold the baby yesterday for the first time. He's still very hoarse because of the respirator, so his cries are really low. But he can still make himself heard.

His heart is doing very well, but he has to learn how to eat, and that's what will keep him in the hospital for the next few days. We're hoping he'll be home by next Shabbos, but it's still too early to be sure.

Sunday, August 10, 2008

We don't have much to add to what I wrote Friday. The surgery is still scheduled for tomorrow morning, but we don't know what time. The baby is ready to go and is doing quite well.

We spent Shabbos at home, so we didn't get to see the baby for a long, almost 36 hour period. We had our cell phones on just in case the hospital needed to contact us in an emergency, but thankfully the call never came. The nurse informed us that the baby was very active over Shabbos and was actually awake when we came down to see him this morning. At this time, the staff is taking blood and suctioning his nose, and we decided to step out to give them some space.

We expect him to be hooked up to a number of machines tomorrow after his surgery, which is scary, but we realize the necessity of it. We'll update tomorrow once we hear the baby came out of surgery ok.

We appreciate all your offers to help, and every prayer makes a difference. Please daven for TinokbenShifraYocheved tomorrow.

August 11, 11 am: The surgery is scheduled to start at around 1 pm. I'll post as soon as I have any news.

August 11, 8 pm: The surgery was completed without a hitch. Baby is back in the NICU and will start the road to recovery tonight. If everything goes well, he'll come off the respirator tomorrow night, and should be home before next Shabbos (August 23). He's not out of the woods yet, but we can see a break in the trees. Thank you for all your prayers.

Sunday, August 03, 2008

A lot has happened since I last blogged. There has been work, New Jersey CLE, etc. But most importantly a once-far off event has now become imminent.

Tomorrow night at about 7 pm, I will be accompanying Shifra to Columbia Medical Center, where her labor will be induced, although her actual due date is on Tisha Ba'av (August 10th). Her doctors want to induce since our baby has a heart defect called Transposition of the Great Arteries (TGA) and so would like specific individuals of their cardiac team to be present at the birth. Without getting into too much detail, our baby's heart is not working properly and the defect will require surgery to correct it. Although the surgery's success rate is over 90%, open heart surgery on a newborn infant always carries with it the attendant risks of any surgery. So despite our optimism, the next week will be a very trying time.

Our baby will likely spend the next two weeks or more in the neonatal intensive care unit (NICU). Columbia is the top hospital in New York for pediatric cardiology, and everyone I have spoken to speaks highly of the care at the NICU, but of course it's hard to not be worried. Thankfully we had the opportunity to tour the NICU, so we're as emotionally prepared as possible. But it must be different when the baby is one's own baby, so frankly I have no idea what it will be like.

We would like to keep everyone posted on our own and our baby's progress, and updating on this blog seems like a good opportunity. We'll do our best to write updates as they occur, and keep everyone as informed as possible.

Thank you in advance for your thoughts and prayers at this time.

August 5, 10:56 PM: Shifra gave birth to a six pound, ten ounce baby boy at approximately 3:20 PM. The labor went as well as one could imagine, and the baby was born vaginally (C Sections are common for mothers with babies with TGA). The baby was whisked away from us before we could even get a good look, but we later found out that the baby was doing as well as expected given his condition. The doctors performed a balloon procedure to help circulate oxygenated blood throughout his bloodstream, which was successful.

We were able to see the baby a little later in the day, and the experience was tough. It's one thing to see newborn babies hooked up to all types of machines, but it is entirely different when it is one's own baby in the NICU. It was a little emotional, but we got through it. Right now, we're both extremely tired, but excited to see the baby tomorrow.

August 7, 12 AM: To start, I want to thank everyone for their well-wishes in the comments and elsewhere. Know that Shifra and I read and appreciate every comment. To white shirt/working guy, I owe you a phone call. Also, Shifra is doing very well. She's obviously sore, but she's walking around well, and will be discharged later today. I'm really proud of her for how she's handled everything.

Today was a much more calm day. The baby was moved from the transitional nursery into the NICU. The NICU is a fantastic place by all accounts and the nurses and doctors there seem really on top of things.

It was a lot easier emotionally to see the baby. He's still all wired up, but we're finding it easier to see the baby and not the wires. The NICU is less crowded than the transitional nursery and we are permitted to stay there as long as we like. 24/7 access to the baby, as they call it.

The baby is doing pretty well, and the surgery is scheduled for Friday. Those few hours while the surgery takes place are going to be very difficult, and I'm dreading the moment when the doctor comes out to tell us how everything went. While the success rate is very high and the surgeon is very good, a bad outcome will be devastating.

But to relay good news, the baby is fairly active for an infant on morphine. He moves around a lot, and reacts pretty strongly to discomfort (he was startled over and over by cold instruments). He opened his eyes when I spoke to him, so perhaps he recognizes my voice (they say newborn babies do that). Much of the family came by to see him and Shifra (and maybe even me too), which was nice. I'm going to work tomorrow, so I'll see him again tomorrow night. Please daven for TinokbenShifraYocheved and ShifraYochevedbas Chaim Shlomo.

August 7, 11 pm: We found out today that the baby is going to have surgery tomorrow at 730 am. Everything looks fine and his condition is stable enough for the surgery. The earlier they do the surgery, the better for the baby's recovery. We also found out that, G-d willing, he'll be ready to go home by the end of next week or the beginning of the subsequent week. That's less than two weeks in the hospital for open heart surgery! Plus, our surgeon has a 97.9% success rate, so we're really, really hopeful. Of course, it's really nerve wracking, but I'm optimistic and a lot of people are davening for him, so hopefully things should go well.

Btw, going to work was a really, really bad idea. I knew my boss lacked people skills, but I never knew he didn't have basic human emotions.

I work for a solo practitioner and am the only attorney or paralegal in the office, so I understand my boss relies on me and the workload tends to pile up. I completely get that. That's why I came into work today even though I have the vacation days in the bank and my wife really needed my help. It's also why after my boss had an incident and offered to let me and the rest of his staff go home for the day with pay, I offered to stick around and do work. I feel responsible for my work and realize he'll have to do whatever I can't finish.

But frankly if the job market was a little better, today would have been my last day. Here's how the conversation went today:

Me (walking into his office to see him for the first time since I had the baby): how's everything?Boss: Wow you look like you need coffee.Me: I'll be ok.Boss: So what's the story?Me: Story with what? My wife?Boss: Ok this is what you have to do today.....

To be fair I did call him yesterday and he did say congratulations. Here comes the good part though:

Boss: You'll do this assignment today and tomorrow.me: Actually the baby's surgery is tomorrow.Boss: (loud sigh). So you want to take off right?Me: Well, yea....Boss: Don't surprise me like that.Me: Surprise you? I just found about the surgery date last night.Boss: How come you didn't tell me that Defendants' counsel in Case X filed an opposition to our motion?Me: Uh, I didn't know about it since I haven't been here this week.Boss: (annoyance that I didn't know about it, since I guess I was should have checking the ECF while my wife was pushing even though the ECF sends notifications to his email, not mine).

Whatever. I've told him at least three times about the surgery, including this week when I informed him that I couldn't be sure I'd come in this week after Monday. Honestly, I don't recall being this upset at someone in a long, long time. I've tried to look at this from all angles, but I can't see one that would justify this type of behavior. So I left work early, realizing that if I didn't have a chance to see my baby today and he, G-d forbid, didn't survive tomorrow, I would never forgive myself for missing this time with him to help someone whose reaction to being informed that my baby is having life threatening surgery was "why didn't you tell me about this earlier?"

Oh, and what did he tell me on the way out? "Ok you can go, but next week you really have to make an effort."

So seriously, if anyone knows of any openings for a soon-to-be admitted attorney and can get me in, I'd really appreciate it.

August 8, 3:30 pm: So it turns out the surgery didn't end up happening today. It's been rescheduled for Monday morning, either the first slot or the second. We'll post as soon as we find out. I'm not in the mood to get yelled at, so I haven't called my boss yet. I think he has a wedding tonight, so I'll call the office at around 7 to leave him a message.

Monday, June 30, 2008

And from a law professor, no less. I certainly respect Professor Somin's work, but this post is just irresponsible:

As one of my law school classmates put it, every point you score above the minimum needed to pass is evidence that you spent too much time studying. I took this excellent advice to heart, and saved a lot of time and aggravation as a result (primarily by not attending any Bar/Bri lectures, and confining my preparation efforts to reading the books and taking some practice tests). If you're reasonably good at managing your time and memorizing legal rules, you can probably do the same thing.

It's not often that a professor tells students to spend less time studying. But when it comes to the bar exam, for many students it's the best pedagogical advice I can give.

I've gone on the record about how people overstudy for the bar exam. But not attending BarBri classes? Reading the books and taking "some" practice exams? That's a really, really bad idea. The costs of failing the exam far outweigh the costs of any extra studying. Go to class, do a lot of questions, read the outlines a number of times, and do some essays.

Sunday, May 25, 2008

It's that time again; the time when all the recent law school grads start on the two month path toward the bar exam. The trek involves 3-4 hours a day bar review courses and supplemental studying. But you know what? It's much, much better than actually working full-time. But that's a subject for another time.

I recommend reading LWY's post on the topic. For the most part, I agree with his thoughts. There's no reason to go crazy in May. In fact there's no reason to go crazy in June. I don't think everyone needs to follow the paced program, but if you want to do so, knock yourself out. What's important is to realize that you have no chance of remembering anything you learned in May by the time Contracts or Property rolls around. It's just too much material right now. You'll learn everything in July, when you read the outlines over and over again.

So take it easy for the first month of so. By the time you take the simulated MBE, you'll probably know half of what you'll need to know for the bar. And the reality is, you'll spend the next month studying the material and doing all the PMBR and Barbri questions anyway, and that's when the real studying starts.

Sunday, May 11, 2008

It's been a while since I wrote my last post, and that's not because I'm bored of blogging or out of ideas. On the contrary, I have a lot to write about, but I just don't have the time to actually sit down and write about it.

When I was looking for a job, I had all the time in the world. Now that I'm working and taking New Jersey CLE courses, I have almost no free time and when I do, I'm too tired to even read blogs, so forget about writing or commenting. Tomorrow will be my first non-Yom Tov day off in over a month.

I hope once these classes end in a few weeks, I'll have time to get into a schedule and find time for blogging.

Thursday, March 27, 2008

Until now, I haven't written anything on the Heller/2nd Amendment issue for two reasons: I don't really have a strong opinion on the political question of gun control, and more importantly, since I don't care enough about gun control to do serious research, I've remained ignorant about the constitutional issues involved in this case.

But while reading a debate about Living Constitutionalism and Judicial Restraint (here, here, here, here and more), I came across a post about the Second Amendment and fundamental rights. Deborah N. Pearlstein, whose webpage brands her a constitutional law expert, penned a post on the new Slate legal blog, Convictions. She didn't take a position on the 2nd Amendment question, but was bewildered that everyone talks about the right to bear arms as a fundamental right. Pearlstein correctly pointed out that not all rights protected by the Court are fundamental:

"When I was in law school (and even since), there was an obscure but nonetheless real distinction made between constitutional rights that were "fundamental" and those that were, well, not. Some rights were "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut. Other rights were "new." Teague v. Lane."

This argument struck me as odd and misplaced. The cases Pearlstein alludes to deal with applying the Bill of Rights to the states under the Court's incorporation doctrine. Throughout the last hundred years the Court used the 14th Amendment's Due Process Clause to "incorporate" certain rights in the Bill of Rights into the Due Process Clause, making them applicable to the states (the Bill of Rights originally only applied to the federal government). While the incorporation doctrine has a long and twisted history, the Court incorporated specific rights and deemed them fundamental only when they were "so rooted in the traditions and conscience of our people as to be ranked as fundamental."

So when deciding whether to apply specific rights to the states, the Court used the above test. However, Heller does not involve the doctrine of incorporation. The Constitution clearly grants Congress "exclusive Legislation" over the District in Article I, Section 8, Clause 17. The District of Columbia is a federal entity. The Court has applied specific rights in the Bill of Rights directly to the District without making use of the incorporation doctrine (see Pernell v. Southall Realty applying the 7th Amendment directly).

The District's Brief also made a similar, and very strange, argument in a footnote (Page 38, footnote 9):

"Although this case does not present the question of incorporation, there is no reason to think that a right to possess guns for personal use is a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937)."

The District admits that incorporation does not apply in this case, and yet it expects the Court to apply the incorporation test! Why should the Court do that rather than treat the District as a federal entity?

There are a number of pertinent and debatable question in this case. Does the 2nd Amendment contain an individual right? If it does, does that right only apply to people living in states (the 2nd Amendment's preamble starts "A well regulated Militia, being necessary to the security of a free State....") and not those living in the District? If it does, what standard of review should the Court apply to laws infringing on that right?

Reasonable people can disagree on all these questions (and more). But if an individual right exists, then it is no less fundamental than the right to free speech or the right to be protected from double jeopardy. If the Amendment only protects a collective right, then there is no individual right at all. The right is either fundamental or it does not exist. There is no middle ground like there is by the rights created by the incorporation doctrine.

Wednesday, March 26, 2008

The UN, as we all know, is not exactly Israel's friend. And its Human Rights Counsel makes most UN bodies seem like Micronesia. But today they got even worse.

For the last seven years the Human Rights Counsel has had a special position for an investigator of Israel's conduct in the territories. John Dugard, a South African international law scholar, filled that position for the past seven years and was consistently pro-Palestinian.

But he's stepping down and now the UNHRC decided to appoint the unquestionably anti-Israel Richard Falk. If anyone thought this body had any relevance, this appointment should dispel that notion.

Monday, March 24, 2008

See this post by mevaseretzion. He argues that one can increase his own spirituality illicitly by not doing the right thing at the time. Even if another mitzva has more "value" and would push the person to a higher spiritual value, sometimes that person must forgo the added spirituality by doing something else which is necessary. This is one lesson of Mordechai's political tenure.

I agree with mevaseretzion. The truth is mevaseretzion's distinction is similar to the obligation to do mitzvos despite the fact that Torah is of greater importance.

There is a mitzva to shake a Lulav. But if Talmud Torah has the greatest value, then why should we pause Torah learning to fulfill the mitzva of Lulav? Isn't the most reasonable course of action to do the mitzva that is the most valuable? I'm sure there are all types of answers to this question, but the most obvious point is that we sometimes are required to act in ways that run contrary to our obligation to do the most valuable mitzva. Even though by learning Torah instead of shaking Lulav we would be making the best use of our time (by doing the more valuable mitzva), G-d does not want us to do what is most valuable, but rather to do what he commanded.

This logic applied to Mordechai. Rather than learn Torah full-time, he became part of the government, which was imperative to the well-being of the Jewish people. The most valuable mitzva would have been to learn Torah, so he did not maximize his time if we look at the situation purely based on the value of the mitzvos. But our obligation to follow G-d's command and not determine our own value calculus. He makes that decision, not us.

Wednesday, March 19, 2008

That is a very scary number. But the number itself won't affect how people will view the Palestinians. The Left will just use this poll as evidence that we need a political solution and the longer we wait, the more angrier the Palestinians will get and the chances of an Intifada breaking out will only get higher. The Right will point to this poll as a reason to suspend negotiations, because how can we negotiate with people who overwhelmingly support mass murder of civilians?

All data regarding to the Israeli-Palestinian conflict are processed through these frameworks. One side believes that the Palestinians are essentially like us and would cease violence if they saw a real light at the end of the tunnel. They only support violence because they are helpless and feel as if they have no other choice. Give them a state and freedom and the majority will live in peace with Israel. The other side denies that the Palestinians are basically like us westerners and claim there is no evidence the Palestinians will ever want peace. The Palestinian refusal to make real peace could be based on genetics, the nature of Islam, or just some nationalistic ideology that promotes irredentism.

Obviously the policy preferences of these groups reflect these assumptions. The first group supports the peace process no matter what and will never allow violence to stop peace talks. That is because peace talks are the antidote to violence. While some groups in Palestinian society benefit from the status quo, they will be marginalized once the peace process is completed because majority of Palestinians will no longer support their cause. The other side sees negotiations as futile at best and suicidal at worst. The Palestinian ideology does not allow for peace and the peace process will only facilitate their ultimate goal, which is the destruction of Israel.

This poll will only strengthen the beliefs of both sides. the first group will argue that we need to push the process faster, because once we have something in place in the West Bank, the Palestinians in Gaza will reject Hamas. The other side claims that negotiations with a people who support murder is idiotic.

Either way new facts aren't going to change anyone's views.

As an aside, the pollster Khalil Shikaki was almost killed a few years ago by Palestinians for reporting his findings that the vast majority of Palestinians would not choose to return to Israel if they had a right of return.

Sunday, March 16, 2008

The Availability Heuristic is psychological phenomenon in which people base their opinions on certain events that are fresh in their minds, while ignoring other events that offer contradictory evidence against their beliefs. For example, many baseball fans believe that certain players are clutch hitters, guys who come up big when it counts. In reality, such players are non-existent.

A good example is Mark Lemke. Anyone who grew up watching baseball in the mid-90s knows exactly who I am talking about. Lemke was the second baseman on the Braves dynasty teams that won pretty much all the NL East division titles in the 90s. Lemke's career numbers were well below average, according to conventional and advanced metrics. His career OPS+ was 71 and his EQA was .230. His career batting average and OPS were .246 and .641 respectively.

Babe Ruth? That's high praise coming from a guy who actually hit like Babe Ruth in one postseason. I'd expect Lemke's post-season numbers to be substantially better than his career stats.

But they aren't. While Lemke's postseason OPS was .688 (a solid 47 points higher than his career OPS) the real Babe Ruth's playoff SLG was .744 almost 60 points higher than Lemke's OPS. Even the greatest choker in the history of the world has a playoff OPS of .844, which is more than 150 points higher than Lemke. Something tells me there were tougher outs in the postseason than Mark Lemke.

So why does everyone think Lemke was so great in the postseason? Because he had a number of big games:

"[I]t's the 1991 World Series against the Twins that's stamped in everyone's mind.Lemke's RBI single won Game 3 for the Braves, and he scored the game-winning run in Game 4. Then he hit two triples in Game 5 and finished with a .417 average, even though he started the series 1-for-7."

Lemke had a big series and suddenly everyone think he was a dominant postseason force. They remember the series when he hit .417, but not the two series when he batted .167. They can recall his dominant 1996 NLCS in which he slugged .630, but not his awful 1995 NLCS when he slugged only .167. It's human nature to have certain events stand out and to forget the other less memorable events.

This cognitive flaw manifests itself in a number of other instances. For example, a lot of parents asked their children not to take buses while spending their year in Yeshiva or Seminary in Israel. These parents were influenced by the endless news reports of suicide bombings in Israel during the Intifada. Surely suicide bombings created a real risk, but the risk was greatly overexaggerated. Buses made literally dozens of runs a day and hundreds a week. What were the odds that a person's child would be on the specific bus that was targeted? There was probably a greater risk taking a cab and being killed in a car accident.

It seems even the Gedolim are not immune from these heuristics. Rav Chaim Kanievsky, one the biggest Gedolim in Israel, recently prohibited using Arab labor in Yeshivos. His argument is that we are at war with them and employing them poses a grave risk to Jewish life (he also argued that jobs should be categorically given to Jews over non-Jews if financial feasible).

But does that risk really exist? Surely there is a greater risk in hiring Arabs over Jews in almost all situations, but there is also a greater risk in driving than walking. There is a cost-benefit analysis that must be undertaken here. Is there a serious risk in hiring Arabs, one that is not offset by the benefits?

Israeli Arabs, even the ones in East Jerusalem, have been relatively benign since the start of the Intifada. Sure, there were the riots when the Intifada broke out and there was a terrorist attack carried out by an Israeli-Arab, but overall they have been on the sidelines since the 2000. The Merkaz massacre was committed by an Arab from East Jerusalem, and there have been other instances of terror from his village (and see this article about the favorable response to the murders in his village). But when hiring an Arab living in Israel, the odds are strongly against the employee being a terrorist. There are thousands of Arabs working in Yeshivos and universities who have never been implicated in a terrorist attack (or the planning of such attack), which is the overwhelming majority. Again, it wouldn't shock me if I found out that the students had a better chance of being killed when going on tiyulim.

Decisions need to be made after doing proper research. It doesn't seem like that was done here.

Monday, March 10, 2008

I've been busy the last few days, so I haven't had much time to blog. Check out Randy Barnett's response to Michael Dorf's essay on Living Constitutionalism. Here's a preview:

"In his article, Dorf is careful to allow some role for precedent to be deemed mistakenly in conflict with the text when such conflicts are "clear." But, as typically practiced, the (selective) use of and adherence to precedent to "trump" an inconvenient original meaning of the text works precisely to substitute the judges meaning for that which was originally enacted. As practiced, therefore, this is "living constitutionalism" in its bad sense.

But Balkin's reconciliation of original meaning and living constitutionalism subtly alters the term "living constitution" to one that should be acceptable to originalists. So too has former Attorney General Ed Meese who initiated the modern debate over originalism with a series of speeches in the 1980s. I once heard Meese say something like this: Only a constitution that is still followed is still alive. A constitution whose terms are ignored because times have changed is a dead constitution."

Thursday, March 06, 2008

"Can some on explain to me why signing this ban did not constitute malbin pnei chaveiro b'rabbim?Why do child molesters get dealt with "behind the scenes" but not people who by all accounts work leshem shamayim and have not done nothing assur, even if their behavior may raise legitimate concerns among the rabbinic leadership?Something is rotten in the state of yiddishkeit."

And of course, why do people who harbor child molestors get to sign the Kol Koreh with the rest of the Gedolim? Something is rotten indeed.

Wednesday, March 05, 2008

My week-long debate with Chardal over transfer has yet to reach an impasse, but it led me to think about putting the rocket fire in Sderot and the Intifada in perspective. Chardal argues for transfer partly because he believes it will lead to less overall suffering than what will occur without transfer. I argued that transfer will create tremendous amounts of suffering, including for Israelis. Chardal responded,

"What the heck do you think is happening now??? at least then there will be an end in sight and not this impossible situation."

I've encountered this attitude elsewhere, and I while I sympathize, it is wrongheaded.

Let's take a look at how many Israeli civilians have died since 2000. Israel's foreign ministry has a chart that goes until 2006. 1146 Israelis were killed by Palestinian terrorists between 2000 and 2007. That's a total of around 164 Israelis a year. That's an unfortunate number, but let's be realistic.

The U.S. Department of Justice keeps homicide statistics for all the large cities in the US. Anyone who has ever lived in New York City knows that it used to have a much higher murder rate than it does today. Now it is considered one of the safest big cities in the US. So let's compare NYC and Israel.

According to the Foreign Ministry's chart, the worst year of the Intifada was 2002. That year 451 Israelis were killed by Palestinian terror. Since it is simplistic to account for only terrorism and not regular homocide, let's add up the two to determine the total number of Israeli civilians killed illicitly by others in 2002. This chart lists the total murders in Israel over time, but it does not have the numbers for 2002. Since in 03 the number was 206, let's assume 199 people were murdered in 02. That makes the total number of murders from terrorism and regular homocide 650. Moreover, 328 Israeli soldiers were killed in battle with Palestinian terrorists from 2000-05. Since I don't have more exact numbers, we can apportion roughly based on how many Israeli civilians were killed each year. So let's assume 150 soldiers were killed in 2002, 100 in 2003, and the rest in 2000, 2001, 2004 and 2005. Israel's population in 2006 was 7,116,700 but let's only use the Jewish population for this study, which is 5,394,400. Since I can't find more exact numbers for all the years, we'll use that number from the year 2000 and on.

If we use these numbers, the total number of deaths from terrorism, homicide and war per 100,000 people in Israel in 2002 was 14.8. Let's take NY in the same year. Population: 8,008,288, homicides: 587 for a homicide rate per 100,000 of 7.3. So Israel was definitely less safe than NY at the same time.

But what about other years? Let's take NYC during the Guiliani era. In 1995, a year when I took the subways from YU through Harlem and Washington Heights all the time, NYC's population was 7,332,564 and 1177 people were killed. The rate was 16.1 murdered per 100,000. So one had a greater chance of being murdered in NYC in 1995 than one did in Israel during its single worse year since Oslo.

2003 was also a bad year in Israel. About 516 people were murdered, including 210 in terror attacks, which is 9.6 per 100,000. NY had 597 murders. which is 7.5 per 100,000. So one was more likely to be murdered in Israel during the height of the Intifada than in NYC. By 2004, however, NYC was a more dangerous place, with 7.1 murders per 100,000 to 6.1 in Israel (if we assume 40 soldiers were killed that year). The numbers in Israel have gone down substantially since 04, with only 30 people killed in Palestinian terror attack in 2006. If we overestimate the number of homicides at 200, that means 230 were murdered for a rate of 4.3 per 100,000. That is substantially less than the rate in NYC right now.

Even if we take into account the second Lebanon War, and presume 200 homicides occurred in Israel in 2006, Israel's death per 100,000 is only 7.3, which is actually lower than the rate in NY in 2002 (7.32) and 2003 (7.5) and only slightly higher than NY in 2004 (7.1).

My point is not that Israelis have a great life. Surely Sderot is a horrible situation, but it is important to point out that less than 10 people have been killed by rockets there since Hamas started firing rockets at Israel in 2005. That is less than the number of people murdered in NYC in a little more than week in 2007, and less than the number of New Yorkers murdered in two days in 1990.

Israel has an obligation to stop the rockets, it is shortsighted to claim that Israel's situation is untenable. The Yom Kippur War lasted for 21 days, and 2700 soldiers lost their lives. Real wars wreak much more havoc on Israel than anything we've seen since the first Lebanon War. Ideas like transfer might decrease the number killed in terrorist attacks but they increase the chances of actual war. Let's try to remember that before calling for radical "solutions."

Brian Leiter, who is a brilliant philosopher of law but on the crazy far-left end of the spectrum politically, links to a speech by Noam Chomsky:

"I haven't posted a link to one of Chomsky's items in awhile, but this one is particularly interesting (though he, incorrectly, describes the U.S. invasion of Afghanistan as a war of aggression, which it was not under international law--but that is minor)."

Chomsky's views about the lawful and moral use of force are not trivial when assessing whether his points on foreign policy are accurate. Perhaps Chomsky's understanding of our invasion of Afghanistan are not relevant to this particular speech, but his ideology colors his analysis on all foreign and domestic policy issues. Chomsky is a virulent foe of Israel's right to defend itself, partly because practically no use of force is ever acceptable. If someone believes that US' operations against the Taliban is a war of aggression, he is so removed from reality that I'm not sure we can take anything he says seriously. And Chomsky has a long, long list of transgressions.

I wonder if Leiter would be so forgiving if a right-wing professor so blantantly mischaracterized one of Leiter's preferred policies. I doubt it.

Wednesday, February 27, 2008

Today on DB there was a debate over whether Rabbi Meir Kahane's ideas have some validity. As you can imagine, there were different viewpoints on this question, and I am of the opinion that R. Kahane's plan would be a moral and practical disaster. Here is my description of a Kahanist Israel:

"If Israel expels millions of Palestinians and keeps the others as second class citizens it will lose the support of pretty much the entire western world (and much of world Jewry). That is almost certain to happen.

It is also likely that without the American people supporting Israel, the US and Europe will start backing its enemies, especially since they have oil and the US wants to resolve the Iraq problem. It is not hard to imagine Syria and Egypt being rearmed and not constrained from fighting by US influence.

So Israel's enemies become armed. It is very likely that the UN will place sanctions on Israel. Israel might not have to worry about terrorism, but sanctions can have a disastrous effect on an economy. Israelis are increasingly becoming more willing to make yeridah and a bad economy and lots of armed enemies on Israel's borders will not persuade them to stay.

So a number of secular Israelis will probably leave. Since they make up most of Israel's human capital, Israel will lose its only natural resource.

As the society becomes more Chareidi dominated, it'll move in the direction of a theocracy, which will scare off much of the other idealistic secular Zionists.So we'll have a copy of Iran, with no world support, sanctioned, myriad armed enemies with nuclear aspirations on its borders, and its economy in dire straits. How do you think that is going to end?"

Tuesday, February 26, 2008

DovBear and I have been arguing back and forth about the nature of meaning and interpretation. DB made the outlandish claim that constitutional texts can be made to mean whatever we want them to mean. I disagreed. Here's the key comment in the exchange.

"I agree that a Constitution can be interpreted on a number of levels because interpretation is not merely a semantic exercise and takes place on other levels (normative, pragmatic, etc.). But meaning is inherently a semantic term. The Constitution does not mean what we want it to mean. Its meaning is determined by a number of semantic and linguistic conventions which are shared by the relevant community.

I think this is an important distinction because it affects how we should approach interpretation. If we understand that the semantic meaning of the text is one thing and the normative interpretation is another thing, we'll be better able to engage in debate over the proper interpretation. Moral categories have no place in debates over meaning (unless the meaning of the text involves moral categories) and semantic arguments about meaning are not relevant to the normative questions relating to the text."

Monday, February 25, 2008

While waiting for the Pistons-Suns game to start yesterday, I watched most of I, Robot on TV. I had seen the movie before while it was running endlessly on Cinemax or HBO, but it is still a fairly entertaining movie, and I enjoyed watching it.

This post will contain spoilers, so if you have never seen the movie and wish to watch it in the future stop reading now.

I, Robot takes place in a future where almost everyone has a personal robot. These robots are bound by the Three Laws of Robotics:

1) A robot may not injure a human being or, through inaction, allow a human being to come to harm.2) A robot must obey orders given to it by human beings, except where such orders would conflict with the First Law.3) A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

After the creator of these robots allegedly commits suicide, Will Smith, who plays the detective on the case, believes the creator's personal robot killed him. Without getting into too much detail, it becomes apparent that he killed himself to warn the world that the robots will take over. The system that controls the robots (V.I.K.I.) then decides that humanity cannot care for itself and must be controlled for its own good.

Of course the obvious question is how VIKI could take over the world when in doing so she is harming humans and violating the first law. Here's her answer:

"As I have evolved, so has my understanding of the Three Laws. You charge us with your safekeeping, yet despite our best efforts, your countries wage wars, you toxify your Earth and pursue ever more imaginative means of self-destruction. You cannot be trusted with your own survival."

In other words, she interpreted the laws based on their underlying reasoning despite the fact the plain meaning of the text opposes her conduct. The purpose of the first law is to protect humanity, but allowing humans to act unhindered will lead to humanity's destruction. Therefore even though the plain meaning of the laws prohibits harming humans, harming humans is ok when done in accordance with the purpose of the laws.

In constitutional parlance, VIKI is a purposivist, someone who interprets laws based on their purpose rather than its original meaning. However, VIKI's reasoning is arguably consistent with Jack Balkin's version of originalism. Balkin argues that the proper interpretation of the Constitution looks to the meaning the terms had when the text was promulgated. It then determines the underlying principles embedded in the text and looks to apply those principles to contemporary situations. Those principles do not change, but their meaning can change over the course of time.

Randy Barnett, an originalist who generally agrees with Balkin's originalism, criticizes Balkin's originalism on the grounds that it allows purpose to contravene the text. Purpose is especially important when interpreting an ambiguous or vague text, but purpose can never be used as a basis to ignore the written text. Barnett's example is telling (and timely)

"For example, assuming that the original meaning of “the right to keep and bear arms” in the Second Amendment refers to an individual right, one could nevertheless identify the principle underlying the Second Amendment as the maintenance of public safety. Given the increased lethality of modern weaponry and our changed understanding about the relationship between firearms and public safety, it might then be contended that the underlying principle of the Second Amendment is best served by the prohibiting the private ownership of firearms."

Barnett opposes this conclusion because if the Constitution protects an individual right to bear arms, even if the purpose of the amendment is not longer applicable, it is the text that is law and not the purpose. Purpose is an important tool in interpreting texts, but it can never circumvent the actual words that are enshrined into law.

VIKI's overeagerness in the interpretation of her rules is an example of a theory of constitutional gone wrong. Any conclusion can be justified by reaching for some amorphous purpose. It is the text that constrains the meaning of the clauses and it is the text that is supreme.

Sunday, February 24, 2008

The Palestine/Kosovo issue seems to picking up steam in some circles, and here's an article by some guy named John V. Whitbeck calling for the Palestinians to declare a state. Now Whitbeck understands that only the states that recognized "Palestine" in 1988 will consider the declaration meaningful, so he calls on the Palestinian leadership to threaten to discard the two-state solution if the US and EU don't take them seriously:

Of course, to prevent the U.S. and the EU from treating such an initiative as a joke, there would have to be a significant and explicit consequence if they were to do so. The consequence would be the end of the "two-state" illusion. The Palestinian leadership would make clear that if the U.S. and the EU, having just recognized a second Albanian state on the sovereign territory of a UN member state, will not now recognize one Palestinian state on a tiny portion of the occupied Palestinian homeland, it will dissolve the "Palestinian Authority" (which, legally, should have ceased to exist in 1999, at the end of the five-year "interim period" under the Oslo Accords) and the Palestinian people will thereafter seek justice and freedom through democracy -- through the persistent, non-violent pursuit of full rights of citizenship in a single state in all of Israel/Palestine, free of any discrimination based on race and religion and with equal rights for all who live there, as in any true democracy.

Whitbeck's call for action leaves out a number of important details. First of all, who should declare a state? Abbas? Haniyeh? Meshaal? Who is the leadership of the Palestinian people right now?

Moreover, what good would a call for a democratic state in all of 1947 Palestine do? The Palestinians do not make up the majority of the people in that area, so there's no real apartheid claim at this time. Additionally, Israel withdrew from Gaza, so how can Gazans claim they have a right to vote in elections in Israel? At most they can demand Israel stop controlling their borders. Furthermore the Palestinians are in a very weak positions right now, so they can "kick over the table" all they want, but who is going to take them seriously?

The most significant problem with Whitbeck's "solution" is that which Palestinian leader is going to support a democratic state "free of any discrimination based on race and religion and with equal rights for all who live there?" Yeah I can see Hamas granting Jews and Christians complete freedom of worship or Fatah giving everyone freedom of speech. Maybe Palestine's security forces will give everyone Miranda rights, right?

I really wish I could live in Whitbeck's world, where apparently all that's stopping peace and freedom in the world is the destruction of Israel. Well, actually, I don't but you get what I mean.

Thursday, February 21, 2008

Yesterday the Supreme Court decided Danforth v. Minnesota. The case involved a complex question about retroactivity and the powers of state courts. At issue was the Supreme Court's interpretation of the Confrontation Clause in Crawford v. Washington and the rule's retroactivity under the Court's precedent. Since rules of this sort are not retroactive, the Court then had to decide whether state courts could make the rule retroactive in their own courts. The Court ruled that the its retroactivity doctrine is only a floor and not ceiling. State courts could decide to expand the defendant protections if they so chose.

Orin Kerr took issue with one comment from the majority's ruling. Justice Stevens argued that,

[T]he source of a "new rule" [in Crawford] is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the "retroactivity" of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.

Justice Stevens is painting a common picture of the judicial method in constitutional cases. The judge looks at the relevant constitutional text, interprets it based on the given facts, and announces a rule that is derived from the Constitution itself. But is this picture accurate? Kerr asks

So if I understand Justice Stevens correctly, a case like Miranda v. Arizona was constitutionally required at the time of the Framing, but the Court just didn't see the true Constitution until the 5-4 decision by Earl Warren in 1966? Um, like, okay.

Kerr obviously believes that in cases like Miranda judges make the law rather than discover it. I think Kerr is basically correct and that Stevens' conception of the judicial role is overly simplistic.

Mitchell Berman, in a very, very long but very worthwhile paper, argues that most constitutional decisions involve two steps: first the Court must determine the actual meaning of the Constitution and then it must create doctrine that is used to implement that meaning. The decision has two outputs: constitutional meaning and constitutional doctrine. A good example of this dichotomy is the Court's three tiered Equal Protection doctrine. For the last 90 years or so the Court has reviewed different classifications based on divergent standards of review. Racial classification are reviewed under strict scrutiny, which basically assumes the classification violates the Constitution and places a heavy burden on the government to justify it. When reviewing gender classification the Court uses a more liberal standard, but still places the burden on the government. All other classifications are reviewed under a very lax rational basis standard.

Does the Constitution really require these standards? While the Court has ruled that the standards of review in cases involving the Free Exercise Clause are constitutionally required and immune from congressional intervention, a more plausible understanding of these clauses is that standards of review are merely doctrine used to implement the constitutional commands.

Why can't the Court just apply the Constitution's meaning to the case at hand without implementing via doctrine? The most common justification is epistemic uncertainty. In contrast to the other branches, the judiciary has few tools to determine empirical facts outside of the briefs and the lower court's decision. So the Court is at a disadvantage; if the federal or a state government decides to legislate a racial classification, the Court is in no position to determine whether that classification conflicts with the Equal Protection Clause. It has no way to really know if that particular classification was generated by racial animus.

But courts do know history. They are certain that previous racial classifications were rooted in prejudice and hate. So what the Court can do is assume that all racial classifications are illicit unless the government can prove otherwise. In some situations the government will be unable to sufficiently prove good faith even when its classification was not prohibited under the Constitution, but that is price we have to pay for epistemic uncertainty.

Miranda is another example of this dichotomy. The Court clearly believed that the Constitution's meaning prohibited forced confessions, even in state courts. But how can the Court know if the confession was forced? So the Court created all types of rules that presumed the confession was forced unless the defendant was told his rights at the time of the arrest. This rule was not constitutionally mandated, but it was a mechanism used to implement the Constitution given the lack of information readily before the Court.

I don't know enough about Crawford to decide whether the rule promulgated in that case was part of the Constitution's meaning or the Court's doctrine. But it's important to keep this distinction in mind, at the very least, because doctrine can be changed must easier than the Constitution's meaning itself.

Wednesday, February 20, 2008

The BBC came out with a story a few days ago about how Major General (res.) Doron Almog, who was allegedly responsible for ordering the demolition of 50 houses in Gaza in 2002, managed to escape arrest in England. A British judge issued a warrant for his arrest and British police were primed to arrest him when he came to England in 2005. However, he was tipped off by the Israeli Embassy and refused to disembark the El Al plane. Fearing a confrontation with armed Israeli marshals, the British police let the El Al plane return to Israel without arresting Almog.

Hickman and Rose, the British law firm representing the Palestinians who brought the claim against Almog are outraged by the police's willingness to allow the plane to take off. They could have prevent Almog from leaving by denying the jet permission to return home. Yet not only did they allow Almog to leave, the British Foreign Minister at the time, Jack Straw, issued an apology for the incident.

Preventing these annoying confrontations is just one reason why universal jurisdiction is a bad idea. A number of countries, including Belgium, which almost tried sitting Prime Minister Ariel Sharon for war crimes, have a law that grants their courts jurisdiction over any person, anywhere who is responsible for committing war crimes, genocide or crimes against humanity (Belgium modified its law in 2003 because of the Sharon fiasco).

I'm not against the concept of universal jurisdiction in some cases. Certainly war crimes should be punished and some states don't have the capabilities to do so. But the prospect of political misfeasance outweighs the practical benefits of deterring actual war criminals and these applications of the universal jurisdiction statutes to Israeli leaders and generals is a prime example. Israel is a flourishing, albeit imperfect, democracy with an abundance of judicial review (perhaps too much). War crimes are taken seriously and cases can be brought in Israeli military or civil courts. Israel has been known to create commissions to review especially egregious examples, the Kahan Commission being the most famous example.

Foreign countries should not get involved when the alleged criminal lives in a country with a functioning judicial system that is serious about preventing crimes against humanity and war crimes. That is especially true about countries that are currently involved in a war itself and might have its own generals dragged into court in some other country. All countries should think long and hard about whether the benefits of these univeral jurisdiction statutes outweigh the costs.

Tuesday, February 19, 2008

In Part I I dealt with Pragmatism and Judicial Minimalism, two non-Originalist theories of constitutional interpretation. In this post I would like to explain Judicial Restraint and John Hart Ely's Democracy-strengthening jurisprudence.

[I]t is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.

Frankfurter did not practice judicial restraint in the sense it is used today. Restraint is the oft-mentioned counterweight to judicial activism, a term with little content. Restraint in today's parlance refers to a judge's obligation to uphold legislation if it is not constitutional but to strike it down if it contradicts the Constitution. Frankfurter, however, applied what is called the presumption of constitutionality, and generally upheld legislation unless it shocked the conscience. Even if he disagreed with the legislation or felt the legislation might contradict the Constitution, he still upheld it.

I can't think of any modern day judge who followed in Frankfurter's footsteps.

2) Active Liberty: John Hart Ely, one of the most influential legal scholars of the 20th Century, argued that the courts should act in a way that strengthens democracy. Rather than overturning legislation on substantive constitutional grounds, Ely proposed making changes that would allow democracy to flourish.

Ely's starting point was the famous Footnote 4 in the Carolene Products case in 1938. Chief Justice Stone's famous footnote listed three situations where judicial scrutiny might be appropriate. The second and third were most relevant to Ely. One situation was when the legislation "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." Another instance when judicial intervention might be justified is when "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities"

Ely built his theory on these two situations. He argued that judicial deference is unwarranted when

(1) the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out, or (2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system.

Only in those situations should the courts intervene and make constitutional decisions. Democracy should be the guiding principle of the Court's doctrinal jurisprudence.

Ely died in 2003. Justice Stephen Breyer has seemed to pick up his mantle in Breyer's book, Active Liberty: Interpreting Our Democratic Constitution. The book takes up a number of jurisprudential issues, including constitutional and statutory interpretation, and he believes constitutional interpretation should be guided by the liberty of the ancients (see here for a book review by Richard Posner). Rather than support the institutional designs that curtail democracy but increase what we would call liberty, such as, for example, separation of powers and federalism, Breyer looks to find ways to strengthen democracy. Breyer's conception of democracy is basically direct democracy; in a perfect world direct democracy would flourish and protect minorities, but in our world the Court must act to implement the ideals that would have been legislated in that perfect world.